MARILYN PENN: HIDING BEHIND A BEARD

While Major Nidal Hasan served as army psychiatrist at Fort Hood, he was a clean-shaven American Muslim. After he was imprisoned, awaiting trial for murdering 13 people and maiming 32 others for the glory of Allah, he decided to redouble his religious identification by growing a thick beard and mustache Though army regulations specifically prohibit soldiers from wearing beards, Major Hasan and his lawyers argued that this was a matter of religious liberty and the alleged killer appeared in court defiantly hirsute, looking as sinister as Rasputin. The presiding judge claimed that this was disruptive, fined him and had him forcibly removed from the courtroom. The judge also mistakenly accused the accused of spreading feces in a restroom (it turned out to be mud tracked in by a guard’s boot), ordered him shaved and then refused to recuse himself as defense lawyers had requested. This was appealed and the accused has scored his second victory, thumbing his mustached nose at the American army and the American people. The appeals court, composed of civilian judges, never ruled on whether ordering Hasan to be shaved violated his religious rights, hiding behind the claim that grooming issues were the purview of military commanders, not military judges. Instead, they agreed that the judge was biased against the defendant and ordered him removed from the case.

Even though the court copped out on ruling whether forced shaving was injudicious or violative of the defendant’s rights, we should be thinking of those versus the rights of the army and the right of a judge to determine the decorum in his courtroom. Consider the sequence: An army major opts to follow the religious beliefs of extremist terrorists, goes on a rampage and shoots to kill as many people as possible. After he is apprehended, on trial for his own life with little left to lose, he steps up the ante on his own radicalization and adopts the look of his fully bearded mentors. The judge, knowing that the major is aware of army regulations, considers this action a deliberate taunt to his authority, as well it was. He orders the defendant to comply with the rules and, by so doing, to look the same as he did when he committed this heinous mass murder, both sensible and logical reasons for insisting that Hasan shave. One of the prosecution arguments was that by growing the beard, Hasan was making it more difficult for witnesses to identify him in court. Clearly, the appeals court was more concerned with the possible Muslim reaction to perceived “Islamophobia” than about the rights of the judge to insist on upholding army regulations in his own courtroom.

Nagging questions remain: Why was Major Hasan allowed to grow the beard all along? Why wasn’t this reported to the proper chain of command? Given that the commanding officer obviously did not do his job of enforcing army regulations, why couldn’t the judge, in command of his courtroom, act independently of the derelict officer? Had Hasan managed to disrobe in court or purposely spit all over himself, would the judge have been expected to send for a commanding officer to deal with “grooming” issues before ordering him to correct his behavior? This trial is not a whodunnit – nobody disputes that Nidal Hasan committed these treacherous killings. The Fort Hood massacre was perpetrated in November, 2009; by any reckoning, particularly for the army, the victims and survivors, the killer has already outsmarted the system by the 4 years that have passed while attempting to bring him to justice. Lawyers worrying about whether the defendant has a right to be bearded instead of worrying about the swift resolution of this case and punishment for these unforgivable crimes is itself a travesty of American jurisprudence.